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Article I. Definitions; Interpretation | 1 | |||
Section 1.1 General Definitions | 1 | |||
Section 1.2 Financial Definitions | 24 | |||
Section 1.3 Interpretation | 27 | |||
Section 1.4 Business Day Adjustment | 28 | |||
Section 1.5 Conflicts | 28 | |||
Section 1.6 Financial Calculations | 28 | |||
Article II. The Loan | 28 | |||
Section 2.1 Description of the Loan | 29 | |||
Section 2.2 Purpose of the Loan | 29 | |||
Article III. Agreement for the Loan | 29 | |||
Section 3.1 The Loan Amount | 29 | |||
Section 3.2 Disbursement Procedure | 29 | |||
Section 3.3 Repayment | 30 | |||
Section 3.4 Notes | 30 | |||
Section 3.5 IDB’s Determination Final | 32 | |||
Section 3.6 Voluntary and Mandatory Prepayments | 32 | |||
Section 3.7 Application of Prepayments; Prepayment Fee | 34 | |||
Section 3.8 Charges and Fees | 35 | |||
Section 3.9 Currency and Place of Payment | 35 | |||
Section 3.10 Judgment Currency | 35 | |||
Section 3.11 Allocation of Partial Payments | 36 | |||
Section 3.12 Late Charges | 36 | |||
Section 3.13 Taxes | 37 | |||
Section 3.14 Costs, Expenses and Losses | 37 | |||
Section 3.15 Suspension or Cancellation by IDB | 38 | |||
Section 3.16 Cancellation by the Borrower | 38 | |||
Section 3.17 Fixed Rate Prepayment Costs for Prepayment of the A Loan | 39 | |||
Section 3.18 Terms and Conditions Applicable to Cancellation or Suspension | 39 | |||
Section 3.19 Increased Costs | 39 | |||
Section 3.20 Illegality | 40 | |||
Section 3.21 Reimbursement of Expenses | 40 | |||
Section 3.22 A Loan Interest | 41 | |||
Section 3.23 B Loan Interest | 42 | |||
Section 3.24 Change in Interest Period | 43 | |||
Section 3.25 Market Disruption | 43 | |||
Article IV. Representations and Warranties | 44 | |||
Section 4.1 Representations | 44 | |||
Section 4.2 Acknowledgment and Warranty | 49 | |||
Section 4.3 Survival | 49 |
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Article V. Conditions Precedent to Disbursement | 50 | |||
Section 5.1 Conditions Precedent to First Disbursement | 50 | |||
Section 5.2 Conditions Precedent to all Disbursements | 52 | |||
Section 5.3 Conditions for IDB Benefit | 53 | |||
Article VI. Covenants | 53 | |||
Section 6.1 Affirmative Covenants | 53 | |||
Section 6.2 Negative Covenants | 59 | |||
Section 6.3 Information | 60 | |||
Article VII. Events of Default | 65 | |||
Section 7.1 General Acceleration Provisions | 65 | |||
Section 7.2 Events of Default | 65 | |||
Section 7.3 Bankruptcy | 69 | |||
Article VIII. Miscellaneous | 70 | |||
Section 8.1 Notices | 70 | |||
Section 8.2 English Language | 70 | |||
Section 8.3 Indemnity | 71 | |||
Section 8.4 Successors and Assigns | 71 | |||
Section 8.5 Counterparts | 72 | |||
Section 8.6 Confidential Information | 72 | |||
Section 8.7 Amendment | 72 | |||
Section 8.8 Savings of Rights; Remedies and Waivers | 73 | |||
Section 8.9 Severability | 73 | |||
Section 8.10 Applicable Law and Jurisdiction | 73 | |||
Section 8.11 Term of Agreement | 75 | |||
Section 8.12 Set-Off | 75 |
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Exhibit A | Form of Certificate of Incumbency and Authority | |
Exhibit B | Form of Disbursement Receipt | |
Exhibit C | Form of Disbursement Request | |
Exhibit D | Initial Minimum Eligibility Criteria for Green Loans | |
Exhibit E | Environmental and Social | |
Part A | List of Excluded Activities | |
Part B | Form of Environmental and Social Compliance Report | |
Part C | Form of Environmental, Social, Health and Safety Action Plan | |
Part D | Form of Borrower’s Certificate Regarding Environmental and Social Compliance | |
Exhibit F | Form of Fee Letter | |
Exhibit G | Member Countries of IDB | |
Exhibit H | Form of Prepayment Notice | |
Exhibit I-1 | Form of A Loan Promissory Note (Pagaré) | |
Exhibit I-2 | Form of B Loan Promissory Note (Pagaré) | |
Exhibit J | Form of Borrower’s Certificate Regarding Organizational Documents | |
Exhibit K | Form of Borrower’s Certificate Regarding Directors’ Resolutions | |
Exhibit L | Form of Auditor’s Accounting, Cost Control and Information Certificate | |
Exhibit M | Form of Service of Process Letter | |
Exhibit N | Form of Authorization of Auditors | |
Exhibit O | Form of Certificate of Auditors | |
Exhibit P | Information to be Included in Annual Review of Operations | |
Exhibit Q | Revised Green Loan Eligibility Criteria Completion Steps | |
Exhibit R | Pledged Green Loan Prepayment Event Report |
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Schedule 1 | Escasany, Ayerza and Braun Family Members | |||
Schedule 2 | Form of Borrower’s Certificate for Collateral |
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(1) | BANCO DE GALICIA Y BUENOS AIRES S.A., a sociedad anónima duly organized and validly existing under the laws of the Republic of Argentina (theBorrower); and |
(2) | INTER-AMERICAN DEVELOPMENT BANK, an international organization established by the Agreement Establishing the Inter-American Development Bank (or Agreement Establishing IDB) among its member countries (IDB). |
A. | The Borrower has requested that IDB make a loan to the Borrower for the purpose of funding Green Loans to Eligible Sub-Borrowers (each, as defined below) in the Republic of Argentina; |
B. | IDB is prepared to establish and make available to the Borrower a loan for such purposes, subject to the terms and conditions hereof. |
Definitions; Interpretation
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(a) | the prevailing one-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is between one (1) and forty-five (45) days; |
(b) | the prevailing two-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is between forty-six (46) and seventy-five (75) days; |
(c) | the prevailing three-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is between seventy-six (76) and one hundred five (105) days; |
(d) | the prevailing four-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is between one hundred six (106) and one hundred thirty-five (135) days; |
(e) | the prevailing five-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is between one hundred thirty-six (136) and one hundred sixty-five (165) days; and |
(f) | the prevailing six-month LIBOR if the period from and including the relevant Interest Rate Determination Date to but excluding the next Interest Rate Determination Date is more than one hundred sixty-five (165) days. |
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1.1.53.1 | the date that occurs five hundred forty (540) days after the Effective Date; |
1.1.53.2 | the date specified in a notice issued by the Borrower to IDB pursuant to Section 3.16.1 (Cancellation by the Borrower), provided that the terms of Section 3.16.2 (Cancellation by the Borrower) are fully satisfied; |
1.1.53.3 | any other date on which the obligation of IDB to make Disbursements of the Loan is terminated in accordance with the terms of this Agreement; and |
1.1.53.4 | the first Loan Repayment Date. |
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1.1.57.1 | a brief description of the non-compliance, including the extent, magnitude, impact and cause thereof; | ||
1.1.57.2 | the proposed corrective actions; |
1.1.57.3 | the designations of the Persons responsible for the implementation of such proposed corrective actions; | ||
1.1.57.4 | a time schedule for implementing such proposed corrective actions; | ||
1.1.57.5 | the estimated costs of implementing such proposed corrective actions; and |
1.1.57.6 | the actions proposed to prevent similar or related non-compliances from occurring in the future. |
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1.1.58.1 | all Indebtedness for Borrowed Money; |
1.1.58.2 | any credit to such Person from a supplier of goods or under any installment purchase or other similar arrangement in respect of goods or services (except trade accounts payable within ninety (90) days in the ordinary course of business); |
1.1.58.3 | the aggregate amount then outstanding of all liabilities of any other Person to the extent that such Person provides a Guarantee of such liabilities; and |
1.1.58.4 | all liabilities of such Person (actual or contingent) under any conditional sale or a transfer with recourse or obligation to repurchase, including by way of discount or factoring of book debts or receivables. |
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1.1.68.1 | all distributions (whether in cash, Property or obligations) on, other payments on account of, the setting apart of money for a sinking or other fund for, the purchase, redemption, retirement or other acquisition of any portion of the Borrower’s Share Capital, including any payments to be made by the Borrower to its shareholders and other affiliates, including payments in respect of dividends (except for payments of minimum mandatory dividends set forth in the Borrower’s Country’s Corporations Law), capital reductions, distributions, repurchases or redemptions of outstanding stock (including options or warrants), and investments in, capital contributions, loans advances and other payments to any shareholder or other Persons; or |
1.1.68.2 | any payment, purchase, retirement or other acquisition of any subordinated debt, any debt other than the Loan or any deposit or similar transaction made to secure any loan or other financial obligation of any Affiliate of the Borrower; or |
1.1.68.3 | any payment of development, management or operation fees to any Affiliate of the Borrower. |
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1.1.90.1 | this Agreement; | ||
1.1.90.2 | each Note; | ||
1.1.90.3 | the Participation Agreement(s) with respect to the B Loan, if applicable; | ||
1.1.90.4 | the Paying Agency Agreement with respect to the B Loan, if applicable; | ||
1.1.90.5 | the Fee Letter(s); | ||
1.1.90.6 | the Security Documents; and |
1.1.90.7 | all other documents and certificates required to be delivered from time to time hereunder and thereunder. |
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1.1.98.1 | freedom of association and the effective recognition of the right to collective bargaining; | ||
1.1.98.2 | prohibition of all forms of forced or compulsory labor; |
1.1.98.3 | prohibition of child labor, including the prohibition of persons under eighteen (18) years of age from working in hazardous conditions (which includes construction activities), persons under eighteen (18) years of age from working at night, and that persons under eighteen (18) years of age be found fit to work via medical examinations; |
1.1.98.4 | elimination of discrimination in respect of employment and occupation, where discrimination is defined as any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national extraction or social origin; | ||
1.1.98.5 | compliance with all Applicable Law relating to labor; and |
1.1.98.6 | compliance with all international labor organizations conventions and treaties which have been ratified by the Borrower’s Country. |
1.1.101.1 | to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase Property, goods, securities or services, to take-or-pay, or to maintain Financial Statement conditions or otherwise); or |
1.1.101.2 | entered into for the purpose of assuring in any other manner the holder of such Debt of the payment or performance thereof or to protect such holder against loss in respect thereof (in whole or in part), including the payment of amounts drawn under letters of credit. |
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1.1.105.1 | any change in Applicable Law or in the interpretation thereof by any Authority charged with the administration or interpretation thereof, whether or not having the force of law; |
1.1.105.2 | any compliance with any request from, or requirement of, any central bank or other monetary or other Authority; or |
1.1.105.3 | in the event that the A Loan Interest Rate or the B Loan Interest Rate is calculated in accordance with Section 3.25.1 (Market Disruption), Increased Costs shall also include any difference between the Alternate Base Rate and the actual cost to IDB or any Participant, as applicable, of making, funding or maintaining the Loan or its Participation for the relevant Interest Period, including Increased Costs incurred in the event that any Participant may choose to use a different base rate than the Alternate Base Rate or may incur costs in connection with switching from LIBOR-based funding to the Alternate Base Rate. |
1.1.105.3.1 | imposes, modifies or makes applicable any reserve, special deposit or similar requirements against Property held by, or deposits with or for the account of, or loans made by, IDB or the Participant(s); |
1.1.105.3.2 | imposes a cost on IDB or the Participant(s) as a result of its having made or committed to make the Loan (or in the case of a Participant(s), acquired or committed to acquire its Participation) or reduces the rate of return on the overall capital of IDB or the Participant(s) that it would have been able to achieve had IDB not made or committed to make the Loan (or in the case of the Participant(s), had the Participant(s) not acquired or committed to acquire its Participation); |
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1.1.105.3.3 | changes the basis of taxation on payments received by IDB in respect of the Loan or by the Participant(s) with respect to its Participation (other than a change in taxation of the overall net income of IDB or the Participant(s) imposed by the jurisdiction of its incorporation or in which it books its Participation or in any political subdivision of any such jurisdiction); or | ||
1.1.105.3.4 | imposes on IDB or the Participant(s) any other condition regarding the making or maintaining of the Loan or, as the case may be, its Participation; |
1.1.106.1 | the circumstances giving rise to the Increased Costs; | ||
1.1.106.2 | that the costs of IDB or, as the case may be, the Participant(s), have increased or the rate of return of either of them has been reduced; | ||
1.1.106.3 | the Increased Costs; and | ||
1.1.106.4 | that IDB or the Participant(s) has exercised reasonable efforts to minimize or eliminate the relevant increase or reduction, as the case may be; |
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1.1.113.1 | on the Interest Rate Determination Date by calculating the arithmetic mean of the offered rates advised to IDB on or around 11:00 a.m. London time, for deposits in Dollars by any three (3) major banks active in Dollars in the London interbank market, selected by IDB; provided that if fewer than three (3) quotations are received, IDB may rely on the quotations so received if not less than two (2); or |
1.1.113.2 | if fewer than two (2) quotations are received from the banks in London in accordance with subclause 1.1.113.1 above, on the first day of the relevant Interest Period, by calculating the arithmetic mean of the offered rates advised to IDB on or around 11:00 a.m. New York time, for loans in Dollars, by a major bank or banks in New York, New York selected by IDB. |
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1.1.120.1 | the business, Property, liabilities, operations, assets or financial condition (present or future) of the Borrower; | ||
1.1.120.2 | the implementation of the Loan; |
1.1.120.3 | the ability of the Borrower to perform its obligations under any Financing Document to which it is a party; | ||
1.1.120.4 | the rights or remedies of IDB under the Financing Documents; or |
1.1.120.5 | the validity or enforceability of any material provision of any Financing Document. |
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1.1.126.1 | the unpaid principal of and interest on the Loan (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Loan, and interest accruing at the then applicable rate provided in this Agreement after the submission of the Borrower to a surveillance, intervention or liquidation regime, or the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding); and |
1.1.126.2 | all other obligations and liabilities of the Borrower to IDB or the Paying Agent (if any) under this Agreement or any other Financing Document, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or the other Financing Documents or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, charges, expenses or otherwise (including all fees and expenses that are required to be paid by the Borrower pursuant to the terms of this Agreement or any other Financing Document). |
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1.1.136.1 | with respect to Dollar-denominated investments, |
1.1.136.1.1 | securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than six (6) months from the date of acquisition by such Person; | ||
1.1.136.1.2 | time deposits, certificates of deposit and banker’s acceptances of any Acceptable Financial Institution having maturities of not more than six (6) months from the date of acquisition by such Person; | ||
1.1.136.1.3 | Investments in funds substantially all the assets of which are comprised of securities of the types described in Sections 1.1.136.1.1 and 1.1.136.1.2; | ||
1.1.136.1.4 | United States Securities and Exchange Commission registered money market mutual funds conforming to Rule 2a-7 of the Investment Company Act of 1940 (17 C.F.R. § 270.2a-7) in effect in the United States of America, that invest primarily in securities of the types described in Section 1.1.136.1.1 and repurchase obligations backed by those obligations; and | ||
1.1.136.1.5 | Investments in commercial paper maturing within two hundred and seventy (270) days from the date of acquisition thereof and having, at such date of acquisition, a credit rating from Standard & Poor’s Ratings Group (a division of McGraw Hill Companies) (S&P) of A-1, or from Moody’s Investor Services, Inc. (Moody’s) of Prime-1; and |
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1.1.136.2 | with respect to Peso denominated investments, |
1.1.136.2.1 | securities issued or directly and fully guaranteed or insured by the government of the Republic of Argentina or any agency or instrumentality thereof having maturities of not more than six (6) months from the date of acquisition by such Person; | ||
1.1.136.2.2 | time deposits, certificates of deposit and banker’s acceptances of Acceptable Local Financial Institutions and branches of foreign banks in the Republic of Argentina having maturities of not more than six (6) months from the date of acquisition by such Person; and | ||
1.1.136.2.3 | any other Peso investments in the Republic of Argentina that IDB agrees shall constitute a Permitted Investment. |
1.1.137.1 | Liens created under or pursuant to any of the Security Documents; |
1.1.137.2 | any tax or other Lien arising by operation of law while the obligation underlying that Lien is not yet due, or if due, is being contested in good faith by appropriate proceedings and so long as the Borrower has set aside adequate reserves sufficient to promptly pay in full any amounts that the Borrower may be ordered to pay on final determination of any such proceedings; |
1.1.137.3 | Liens which the Borrower is required to constitute with or in favor of any Authority pursuant to the Banking Regulations and other statutory preferences which are generally applicable to deposit-taking institutions; and |
1.1.137.4 | other Liens constituted or otherwise arising in the ordinary course of banking business including any Lien created under a repurchase agreement involving the sale and repurchase of securities entered into in the ordinary course of business and on the basis of arm’s length arrangements, provided that they fall within the limits permitted by the applicable Banking Regulations including Normas OPASI - Operaciones Pasivas — 2 Capítulo X (Afectación de activos en garantía), and Com A4888, A4975 and B9745, in effect as of the Effective Date. |
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1.1.147.1 | impairing or harming, or threatening to impair or harm, directly or indirectly, any Person or the property of such Person to improperly influence the actions of such Person (aCoercive Practice); |
1.1.147.2 | an arrangement between two or more Persons designed to achieve an improper purpose, including influencing improperly the actions of another Person (aCollusive Practice); |
1.1.147.3 | offering, giving, receiving, or soliciting, directly or indirectly, anything of value to influence improperly the actions of another Person (aCorrupt Practice); |
1.1.147.4 | any action or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a Person in order to obtain a financial benefit or avoid an obligation (aFraudulent Practice); and |
1.1.147.5 | and Obstructive Practice. |
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1.1.157.1 | the Security Agreement; |
1.1.157.2 | all notices and communications actually given to Eligible Sub-Borrowers under the Pledged Green Loans; | ||
1.1.157.3 | the Administration and Custody Agreement; |
1.1.157.4 | other notices, consents, agreements and acknowledgements governed by the Applicable Law of the Borrower’s Country necessary or advisable to perfect IDB’s security interest in the Collateral; and | ||
1.1.157.5 | any other document granting a security interest in favor of IDB for the benefit of IDB as security for the Loan or for the Obligations, as each of the foregoing may from time to time be amended, modified, supplemented, renewed or restated. |
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1.1.162.1 | over fifty percent (50%) of whose Share Capital is owned, directly or indirectly, by that Person; |
1.1.162.2 | for which that Person may nominate or appoint a majority of the members of its Board of Directors; or | ||
1.1.162.3 | which is otherwise effectively Controlled by that Person. |
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3.1.1.1 | the A Loan, in an aggregate principal amount of up to thirty million Dollars ($30,000,000), such amount to be funded by IDB from its ordinary capital resources (theA Loan Commitment); and |
3.1.1.2 | if and when funded, the B Loan, in an aggregate principal amount of up to thirty million Dollars ($30,000,000) or such other amount, such amount to be funded by the Participant(s) pursuant to the relevant Participation Agreement(s). |
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Percentage of A Loan Repayment on | ||||
A Loan Repayment Date | A Loan Repayment Date | |||
August 15, 2012 | 11.11 | % | ||
February 15, 2013 | 11.11 | % | ||
August 15, 2013 | 11.11 | % | ||
February 15, 2014 | 11.11 | % | ||
August 15, 2014 | 11.11 | % | ||
February 15, 2015 | 11.11 | % | ||
August 15, 2015 | 11.11 | % | ||
February 15, 2016 | 11.11 | % | ||
August 15, 2016 | 11.12 | % |
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3.6.1.1 | the Borrower shall deliver to IDB, at least thirty (30) Business Days prior to the relevant Interest Payment Date, a Prepayment Notice which shall set forth the relevant Interest Payment Date and the amount of principal of the Loan to be paid on such date; |
3.6.1.2 | the Borrower shall concurrently pay (a) all accrued interest on the Loan; (b) all accrued Increased Costs (if any) on that part of the Loan; (c) the amount payable (if any) in respect of such prepayment pursuant to Section 3.14.1.2 (Costs, Expenses and Losses); (d) the amount of any prepayment fee in respect of such prepayment pursuant to Section 3.7 (Applications of Prepayments; Prepayment Fee); (e) Fixed Rate Prepayment Costs (if any) in respect of such prepayment; and (f) all other Obligations then due and payable; |
3.6.1.3 | the principal amount of the Loan prepaid shall be an amount equal to at least three million Dollars (US$3,000,000), provided any amount prepaid concurrently therewith in excess of such three million Dollars (US$3,000,000) shall be in an amount no less than whole multiples of one million Dollars (US$1,000,000); and |
3.6.1.4 | the Borrower shall deliver to IDB prior to the date of prepayment, evidence satisfactory to IDB that all necessary Authorizations, if any, with respect to the prepayment have been obtained. |
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3.6.2.1 | Change of Control; Unauthorized Share Transfer; Unauthorized Merger; Unauthorized Subsidiary. The Borrower shall be obligated to make a mandatory prepayment of all Obligations, including the principal balance of, and accrued interest on, the Loan, upon the occurrence of (a) any Change of Control, (b) any Unauthorized Share Transfer, (c) any Unauthorized Merger and/or (d) the creation by the Borrower of any Unauthorized Subsidiary. Prepayment required by this Section 3.6.2.1 (Change of Control; Unauthorized Share Transfer; Unauthorized Merger; Unauthorized Subsidiary) shall be due and payable within five (5) days after the occurrence of such Mandatory Prepayment Event resulting in such prepayment being required. | ||
3.6.2.2 | Pledged Green Loan Prepayment Event. |
3.6.2.2.1 | Subject to the terms and conditions of this Section 3.6.2.2 (Pledged Green Loan Prepayment Event), the Borrower shall be obligated to make a mandatory prepayment of the Obligations, including the principal balance of, and accrued interest on, the Loan, in the event that the total amounts prepaid (or to be prepaid) under any Prepaid Pledged Green Loans and the total amounts due under any Defaulted Pledged Green Loans and Nonconforming Pledged Green Loans, in the aggregate and calculated in each case as of any relevant determination date, either (a) (i) are equal to, or greater than, ten percent (10%) of the principal amount then outstanding under the Loan, and (ii) a Pledged Green Loan Curing Event has not occurred within ninety (90) days from such relevant determination date or (b) (i) are less than ten percent (10%) of the principal amount then outstanding under the Loan, and (ii) a Pledged Green Loan Curing Event has not occurred within three hundred and sixty (360) days from such relevant determination date (either, aPledged Green Loan Prepayment Event). | ||
3.6.2.2.2 | The Borrower may during the relevant cure periods set forth in Section 3.6.2.2.1 above, redeploy the proceeds of amounts received or collected by the Borrower under such Prepaid Pledged Green Loans, Defaulted Pledged Green Loans and Nonconforming Pledged Green Loans (as applicable) to fund additional Eligible Sub-Loans and/or fund additional Eligible Sub-Loans in substitution thereof;provided that (i) the prior approval of the Banking Authority shall not be required therefor, (ii) the Borrower complies fully with all Banking Regulations, and (iii) all such additional Eligible Sub-Loans resulting from the redeployment of such proceeds or otherwise funded by the Borrower are pledged by the Borrower as part of the Security, in accordance with the terms hereof, including Section 6.1.15 (Pledged Green Loan Prepayment Event; Redeployment). |
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3.6.2.2.3 | Upon the occurrence of any Pledged Green Loan Prepayment Event (after expiration of the relevant above-described ninety (90) or three hundred and sixty (360) day period), the Borrower shall apply all proceeds prepaid to or collected by the Borrower (and not otherwise redeployed pursuant to any Pledged Green Loan Curing Event) under all Prepaid Pledged Green Loans, Defaulted Pledged Green Loans and/or Nonconforming Pledged Green Loans towards the payment (whether partial or in full, as applicable) of all Obligations under this Agreement. |
3.6.2.3 | Concurrent Payments. The Borrower shall concurrently with any prepayment described in Section 3.6.2.1 and/or (following expiration of applicable cure periods) Section 3.6.2.2, pay (a) all accrued interest on such prepaid amount to the date of receipt of such prepayment; (b) all accrued Increased Costs (if any) on the Loan; (c) the amount payable (if any) in respect of such prepayment pursuant to Section 3.14 (Costs, Expenses and Losses); (d) the amount of any prepayment fee in respect of such prepayment due pursuant to Section 3.7 (Application of Prepayments; Prepayment Fee); (e) Fixed Rate Prepayment Costs (if any) in respect of such prepayment ; and (f) all other Obligations then due and payable. |
3.7.1.1 | first, be allocated by IDBpro ratabetween the A Loan and, if applicable, the B Loan in proportion to their respective principal amounts outstanding; and |
3.7.1.2 | then, be applied by IDB to the outstanding installments of principal of the A Loan and to the outstanding installments of principal of the B Loan in the inverse order of maturity. |
3.7.3.1 | with respect to the A Loan and, if applicable, the B Loan, during the period from the First Disbursement Date until the first (1st) anniversary of the First Disbursement Date, an amount equal to two percent (2%) of any and all amounts prepaid on the Loan during such period; |
3.7.3.2 | with respect to the A Loan and, if applicable, the B Loan, after the first (1st) anniversary of the First Disbursement Date and on or prior to the second (2nd) anniversary of the First Disbursement Date, one and one half percent (1.5%) of the amount of the Loan prepaid; and |
3.7.3.3 | with respect to the A Loan and, if applicable, the B Loan, after the second (2nd) anniversary of the First Disbursement Date and on or prior to the third (3rd) anniversary of the First Disbursement Date, one percent (1%) of the amount of the Loan prepaid; |
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3.10.2.1 | any Taxes and other amounts payable under Section 3.13 (Taxes); and | ||
3.10.2.2 | any fees, costs and expenses payable under Section 3.8 (Charges and Fees) or Section 3.14 (Costs, Expenses and Losses); |
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3.14.1.1 | failing to (a) pay any Obligations on the due date; (b) borrow in accordance with any Disbursement Request; (c) make any prepayment in accordance with a notice of prepayment pursuant to Section 3.6 (Voluntary and Mandatory Prepayments); or (d) make any repayment or prepayment required pursuant to Section 3.3 (Repayment) or Section 3.20 (Illegality), as the case may be; |
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3.14.1.2 | prepaying all or any portion of the Loan principal amount on a date other than a Loan Repayment Date; or |
3.14.1.3 | canceling any or all of the Loan pursuant to Section 3.15 (Suspension or Cancellation by IDB) or Section 3.16 (Cancellation by the Borrower); |
3.15.1.1 | the first Disbursement has not been made by the Commitment Termination Date, or such other date as the parties may agree; | ||
3.15.1.2 | any Default has occurred and is continuing; or | ||
3.15.1.3 | the Borrower’s Country ceases to be an IDB Member. |
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3.21.1.1 | the preparation, review, execution, official translation and registration of this Agreement and any other documents or matters related to it; | ||
3.21.1.2 | the giving of any legal opinions required by IDB under this Agreement; and |
3.21.1.3 | the administration by IDB of the Loan or otherwise in connection with any amendment, supplement or modification to, or waiver under, this Agreement; |
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3.22.1.1 | Interest on the A Loan shall accrue from day to day for any Interest Period from and including the first day of such Interest Period to, but excluding, the last day of such Interest Period computed on the basis of actual number of days elapsed and a year of three hundred and sixty (360) days and be payable in arrears on the Interest Payment Date falling at the end of that Interest Period;provided thatwith respect to any A Loan Disbursement made less than ten (10) Business Days before an Interest Payment Date, interest on that Disbursement shall be payable commencing on the second Interest Payment Date following the date of that Disbursement. |
3.22.1.2 | IDB’s determination, from time to time, of the A Loan Interest Rate shall be final and conclusive and bind the Borrower unless the Borrower proves to IDB’s satisfaction that the determination involved manifest error. |
3.22.2.1 | During each Interest Period, the A Loan (or, with respect to the first Interest Period for any A Loan Disbursement, the amount of that Disbursement) shall bear interest at the A Loan Variable Interest Rate for that Interest Period. |
3.22.2.2 | The variable interest rate applicable to each Disbursement of the A Loan for any Interest Period shall be the rate that is the sum of: |
3.22.2.2.1 | the LIBOR on the Interest Rate Determination Date for that Interest Period; plus |
3.22.2.2.2 | the Applicable Spread (A Loan Variable Interest Rate). |
3.22.2.3 | For so long as any amounts outstanding under the A Loan accrue interest at the A Loan Variable Interest Rate, on each Interest Rate Determination Date for any Interest Period, IDB shall determine the A Loan Interest Rate applicable to that Interest Period and promptly notify the Borrower of such rate. |
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3.22.3.1 | if the Disbursement Date on which such Disbursement Tranche is funded is an Interest Payment Date, bear interest on and after such Disbursement Date at the A Loan Fixed Interest Rate; or |
3.22.3.2 | if the Disbursement Date on which such Disbursement Tranche is funded is a date other than an Interest Payment Date, bear interest: |
3.22.3.2.1 | at the Applicable LIBOR on the relevant Interest Rate Determination Date plus the Applicable Spread, from and including such Disbursement Date to but excluding the next occurring Interest Payment Date; and |
3.22.3.2.2 | at the A Loan Fixed Interest Rate, from and including the next Interest Payment Date. |
3.22.4.1 | the Disbursement Swap Market Fixed Rate as of the relevant Interest Rate Determination Date; plus | ||
3.22.4.2 the Applicable Spread (theA Loan Fixed Interest Rate). |
3.23.3.1 | the LIBOR on the Interest Rate Determination Date for that Interest Period; plus | ||
3.23.3.2 | the Applicable Spread. |
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4.1.4.1 | contravene any Applicable Law, or any Authorization; |
4.1.4.2 | contravene or result in any breach of any of the provisions of, or constitute a default or require any consent under the terms of, or result in the creation of any Lien (other than the Liens in favor of IDB created pursuant to the Security Documents) under, any indenture, mortgage, deed of trust, agreement or other arrangement to which the Borrower is a party, by which it is bound or to which it or its Property may be subject or any order, injunction, writ or decree of any Authority or any arbitral award to which the Borrower or its Property is subject; or | ||
4.1.4.3 | violate the provisions of the Borrower’s Organizational Documents. |
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4.1.6.1 | Except for any non-compliance disclosed to IDB in writing and explained to the satisfaction of IDB, the Borrower is in compliance with all Environmental and Social Requirements; and |
4.1.6.2 | There are no claims or material unmitigated impacts or risks with respect to Environmental or Social Matters related to the Borrower, or to the best of the Borrower’s knowledge, related to Eligible Sub-Borrowers and Eligible Sub-Loans. |
4.1.8.1 | No action, suit, other legal proceeding, arbitral proceeding, administrative proceeding, investigation or other claim before or of any Authority is presently in progress or pending against the Borrower, or, to the best of the Borrower’s knowledge, has been threatened against the Borrower, which: |
4.1.8.1.1 | relates to or arises under a Financing Document or the transactions contemplated thereby; or |
4.1.8.1.2 | by itself or together with any other such proceeding or claim, has had or could reasonably be expected to have a Material Adverse Effect; and |
4.1.8.2 | No judgment, order or award has been issued which has had or could reasonably be expected to have a Material Adverse Effect. |
4.1.9.1 | The Borrower has filed timely, or caused to be filed timely, all Tax Returns required to be filed by it and has paid, or caused to be paid, all Taxes due and payable by it whether shown to be due and payable on such Tax Returns or on any assessment received by it or otherwise, except to the extent any such Taxes are being diligently contested by appropriate proceedings in good faith and with respect to which adequate reserves have been established on the books of the Borrower in accordance with Accounting Principles. |
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4.1.9.2 | All Taxes required to be deducted or withheld from payments by the Borrower have been timely and duly deducted or withheld and properly paid to the appropriate Authority. |
4.1.10.1 | Under the Applicable Law of the Borrower’s Country, the Borrower is not required to deduct or withhold Taxes from any payment to be made by it under this Agreement or any other Financing Document. |
4.1.10.2 | No Taxes or Other Taxes are required to be paid on or in connection with the execution, delivery, registration, notarization or enforcement of this Agreement or any other Financing Document other than Other Taxes for which the Borrower is liable under Section 3.13 (Taxes). |
4.1.10.3 | Neither the execution, delivery, registration, notarization or enforcement of any Financing Document, nor the consummation of any of the transactions contemplated thereby will result in any Tax (exclusive of Taxes on net income) being imposed by any Authority of the Borrower’s Country upon or with respect to IDB, the Participant(s) or the Paying Agent. |
4.1.11.1 | The Financial Statements as at and for the annual period ending on December 31, 2009 and for the Financial Quarter ending on June 30, 2010 already delivered to IDB were prepared from and are in accordance with the Borrower’s books and records and give a true and fair view of the financial position of the Borrower as of the date thereof and the results of its operations and cash flow for the annual period then ended, all in conformity with Accounting Principles. |
4.1.11.2 | Such Financial Statements disclose all liabilities (contingent or otherwise) of the Borrower and the reserves, if any, for such liabilities and all unrealized or anticipated liabilities or losses arising from commitments entered into by the Borrower (whether or not such commitments have been disclosed in such Financial Statements). |
4.1.13.1 | The written information provided by the Borrower to IDB (other than opinions, projections and other forward-looking statements) was on its date of issue and continues to be true, complete and accurate in all material respects and is not misleading in any material respect nor is any information omitted from such information which would make it misleading in any material respect (except in each case to the extent that the Borrower has provided written updates or amendments to such previously furnished information due to changes in circumstance subsequent to the provision of such information). |
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4.1.13.2 | The opinions, projections, and other forward-looking statements included in such information provided to IDB and the assumptions on which they are based were diligently arrived at and provided by the Borrower in good faith and represented the Borrower’s views as at the date on which they were prepared. |
4.1.13.3 | No event has occurred since the date of provision of written information to IDB which has rendered its contents materially untrue, inaccurate or incomplete (except to the extent that the Borrower has provided written updates or amendments to such previously furnished information due to changes in circumstance subsequent to the provision of such information). |
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5.1.2.1 | IDB has received copies of the Organizational Documents of the Borrower accompanied by a certificate substantially in the form of Exhibit J (Form of Borrower’s Certificate Regarding Organizational Documents) signed by an Authorized Representative of the Borrower certifying such copies as true and complete; and |
5.1.2.2 | the Organizational Documents of the Borrower are in form and substance satisfactory to IDB. |
5.1.3.1 | the execution, delivery and performance of the Financing Documents to which the Borrower is a party; and |
5.1.3.2 | a specified Person or Persons to execute such Financing Documents. |
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5.1.7.1 | the head of Borrower’s Legal Department, in the form of a letter concurring with the opinion set forth in Section 5.1.7.3 (Legal Opinions); |
5.1.7.2 | Andrews Kurth LLP, as special New York counsel to IDB, covering such matters incident to the transactions contemplated by the Financing Documents as IDB may reasonably require; and |
5.1.7.3 | Pastoriza Eviner Cangueiro Ruiz Buljevich Abogados, Borrower’s Country counsel to IDB, covering such matters incident to the transactions contemplated by the Financing Documents as IDB may reasonably require. |
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Covenants
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6.1.4.1 | inspect, examine, copy and make abstracts from any of the Borrower’s books of account and records (or of its Subsidiaries); and |
6.1.4.2 | have access to the Borrower’s or any Subsidiaries’ employees, officers and agents who have or may have knowledge of the matters with respect to which IDB seeks information or of the business, operations, Property and financial and other condition of the Borrower generally. |
6.1.5.1 | Maintain Auditors; |
6.1.5.2 | Authorize the Auditors (whose fees and expenses shall be for the account of the Borrower) to communicate directly with IDB at any time regarding the Borrower’s accounts and operations by executing and delivering to the Auditors (with a copy to IDB) an authorization substantially in the form of Exhibit N (Form of Authorization of Auditors); and |
6.1.5.3 | No later than thirty (30) days after any change in Auditors, issue a similar authorization to the new Auditors and provide a copy thereof to IDB. |
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6.1.9.1 | From time to time, at the Borrower’s cost and expense, execute, acknowledge and deliver or cause to be executed, acknowledged and delivered such further documents and instruments and take all other actions necessary, or in the reasonable opinion of IDB, desirable: |
6.1.9.1.1 | for complying with Section 6.1.14 (Maintenance and Perfection of Security) hereof; |
6.1.9.1.2 | to enable the Borrower to comply with its obligations under the Financing Documents; | ||
6.1.9.1.3 | to implement the terms of the Financing Documents; and |
6.1.9.1.4 | to preserve, protect and perfect IDB’s rights under the Financing Documents, including carrying out all actions necessary to perfect IDB’s Liens in the Collateral. |
6.1.11.1 | a Minimum Capital Requirements Excess of not less than an amount equivalent to thirty percent (30%) of the Minimum Capital Requirements;provided thatthe Borrower shall have the right to request IDB to review such covenant in the event of any material change in applicable Banking Regulations affecting the Minimum Capital Requirements; |
6.1.11.2 | a Three Month Maturity Gap of not more than thirty percent (30%) of the Borrower’s Indebtedness for Borrowed Money; |
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6.1.11.3 | an Economic Group Exposure Ratio of not more than 15%; provided that the Economic Group Exposure Ratio shall not exceed 25% in case of preferred guarantees but excluding in this calculation amounts held in correspondent accounts in investment grade banks (rated A+ or higher) and any amount held to repay any installment of the Borrower’s external debt; |
6.1.11.4 | a Loan Loss Reserves to Problem Exposures Ratio of not less than seventy five percent (75%); |
6.1.11.5 | an Aggregate Exposure to Related Parties to Available Capital Ratio of not more than the lesser of: (i) any minimum ratio required to be maintained by the Borrower pursuant to applicable Banking Regulations and (ii) twenty percent (20%); |
6.1.11.6 | an Unhedged Open Foreign Exchange Position of not more than the percentage of Available Capital as established by the Banking Regulations up to a maximum of forty percent (40%); and | ||
6.1.11.7 | an Open Credit Exposures Ratio of not more than twenty five percent (25%). |
6.1.12.1 | Compliance and Corrective Action. |
6.1.12.1.1 | Comply with all Environmental and Social Requirements; | ||
6.1.12.1.2 | Use all reasonable efforts to keep the ESMS operational; | ||
6.1.12.1.3 | Implement the ESHS Action Plan; and |
6.1.12.1.4 | In the event of any failure to comply with any such Environmental and Social Requirements that continues for a period of ninety (90) days, and within ninety (90) days of becoming aware of such non-compliance, and to the reasonable satisfaction of IDB, either (i) correct such non-compliance and remedy all damages and other adverse consequences caused by it, or (ii) develop and initiate implementation of a Corrective Action Plan. |
6.1.12.2 | Changes. Unless IDB otherwise agrees in writing, not make any material change or modification to the ESMS once implemented;provided thatupon the Borrower’s written request, IDB shall communicate its acceptance or rejection within fifteen (15) Business Days following the Borrower’s submission to IDB of a written request therefor and provision of all information necessary for IDB to reach its decision, it being understood that IDB shall be deemed to have consented to such request of the Borrower if IDB does not respond (with an acceptance, rejection or request for additional information) within such fifteen (15) Business Day period and, in the case of any request by IDB for additional information, IDB shall be entitled to an additional fifteen (15) Business Days following receipt of the requested information to communicate its response to the Borrower. |
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6.1.12.3 | Resources and Training. |
6.1.12.3.1 | Use all reasonable efforts to keep in place the staff and resources necessary for the continuous implementation of the ESHS Action Plan and ESMS; |
6.1.12.3.2 | Provide employee(s) involved in the implementation of the ESMS with periodic specialized training; and |
6.1.12.3.3 | Provide evidence of training to IDB and keep IDB informed of training activities and of changes in environmental and social personnel. |
6.1.12.4 | Environmental and Social Matters for Eligible Sub-Borrowers. If the Borrower becomes aware that any Eligible Sub-Borrower has undertaken any projects in connection with any Eligible Sub-Loans in a manner that is not in accordance with the Environmental and Social Requirements, the Borrower shall promptly: (a) agree with the relevant Eligible Sub-Borrower, or require the relevant Eligible Sub-Borrower to undertake, as appropriate or necessary in the Borrower’s reasonable judgment, corrective measures to remedy such inconsistency or breach; and (b) if the relevant Eligible Sub-Borrower does not implement corrective measures as provided in subclause (a) within the timeframe agreed upon between the Borrower and IDB: (i) use reasonable efforts to exercise such rights and remedies as the Borrower may lawfully and prudently be entitled to exercise to terminate its financing of the Eligible Sub-Borrower, taking into account commercial practicability and practice, and fiduciary responsibilities, or (ii) if such correction or termination is not feasible remove such Eligible Sub-Borrower from Borrower’s portfolio of Eligible Sub-Loans originated with proceeds of the Loan and replace such Eligible Sub-Borrower’s Eligible Sub-Loan with another Eligible Sub-Loan. |
6.1.12.5 | Environmental and Social Inspection and Monitoring. Permit IDB, or the environmental or social consultant(s) retained by IDB, to perform monitoring activities, visits and independent audits (including access to documentation, personnel, facilities and project sites) with respect to Environmental or Social Matters: (a) as part of the annual supervision visits, or at least once (not later than eighteen (18) months after the ESMS effective date), to carry out a mid-term assessment of effectiveness in the implementation of the ESMS; and (b) as reasonably requested by IDB to verify compliance with the Environmental and Social Requirements. |
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6.1.14.1 | Create and maintain in favor, and for the sole and exclusive benefit, of IDB a first, prior and perfected Lien at all times, subject to no other Liens whatsoever in each item of the Collateral including all and each of the Pledged Green Loans and the Pledged Green Loan Documents, in each case fully perfected as and to the extent contemplated by the Security Documents, including taking all action necessary to ensure that any additional or after-acquired Property which, under the Security Documents, is to become part of the Collateral, is subject to a valid and enforceable first ranking and first priority perfected Lien in favor, and for the sole and exclusive benefit, of IDB, subject to no other Liens whatsoever; |
6.1.14.2 | At all times: (a) maintain the Security in accordance with each and every Security Document; (b) perform any and all acts and make, execute, deliver and file any and all documents (including any financing statement, registration statements, continuation statements or other statements or instruments of any kind), observing at all times all legal obligations as grantor of credit, required to be executed or filed under the provisions of Applicable Law, in order to perfect the Security pursuant to the terms of Applicable Law; and (c) maintain the Collateral, free and clear of all Liens other than Liens pursuant to the Financing Documents; |
6.1.14.3 | Commencing on the Disbursement Date and thereafter within thirty (30) days of the last day of such Financial Quarter deliver to IDB a certificate duly executed by an Authorized Representative of the Borrower in the form of Schedule 2 (Form of Borrower’s Certificate for Collateral) setting forth for the immediately preceding Financial Quarter all of the information required to be set forth therein with respect to the Collateral and the Collateralization Ratio, including all supporting calculations of the Borrower therefor; |
6.1.14.4 | Implement and perfect, within ten (10) Business Days of the execution of any Eligible Sub-Loan, the security interest in the relevant Collateral created upon such execution, pay all expenses incurred in connection with such creation and/or perfection and/or establishment, and provide to IDB a copy of evidence of such actions within thirty (30) days of receipt thereof by the Borrower; |
6.1.14.5 | Provide notices to all Eligible Sub-Borrowers whose Pledged Green Loans comprise a portion of the Collateral indicating that payment of all amounts due under such Pledged Green Loans shall be paid to the Collection Accounts; |
6.1.14.6 | Maintain the Required Collateralization Ratio at all times during the term hereof and pledge, or cause to be pledged for the benefit of IDB hereunder and pursuant to the Security Documents such additional Eligible Sub-Loans as may be required in order for the Borrower to maintain the Required Collateralization Ratio; and |
6.1.14.7 | Defend, at the sole cost and expense of the Borrower, the right, title, priority and interest of IDB in the Collateral. |
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6.2.2.1 | At any time change, or permit any of its Subsidiaries to change: (a) any provision of their respective Organizational Documents in any manner which would be inconsistent with, or breach, any provision of any Financing Document or (b) their respective registered domiciles outside of the Borrower’s Country. |
6.2.2.2 | Change the nature or scope of its business or engage in any line of business not permitted under the Banking Regulations, or permit its authorization to operate as asociedad anónimain the Borrower’s Country to be revoked or cancelled. |
6.2.3.1 | in the ordinary course of the Borrower’s business; or |
6.2.3.2 | upon terms that are fair and reasonable to the Borrower and at Fair Market Value. |
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6.3.1.1 | two (2) copies of the audited Financial Statements of the Borrower for such Financial Year setting forth in each case in comparative form the corresponding figures for the previous Financial Year; |
6.3.1.2 | a certificate of the Auditors substantially in the form of Exhibit O (Form of Certificate of Auditors) reporting on such Financial Statements stating that: |
6.3.1.2.1 | in making their examination, the Auditors obtained no knowledge of any Default of Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants) and nothing has come to their attention that would indicate non-compliance with operational limits, prudential regulations or reporting requirements established by the applicable Authority having jurisdiction over the Borrower, or specifying any non-compliance; and |
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6.3.1.2.2 | based on such Financial Statements and information reviewed in connection with the audit, the Borrower is in compliance with Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants) and Section 6.2.1 (No Violation of Applicable Regulations) and nothing has come to their attention that would indicate non-compliance with operational limits, prudential regulations or reporting requirements established by the applicable Authority having jurisdiction over the Borrower, or specifying any non-compliance. |
6.3.1.3 | a certificate of an Authorized Representative of the Borrower: |
6.3.1.3.1 | certifying that such Financial Statements were prepared from, and are in accordance with, the Borrower’s books and records and give a true and fair view of the financial position of the Borrower as of the date thereof and the results of its operations and cash flow for the relevant Financial Year, all in conformity with Accounting Principles; |
6.3.1.3.2 | certifying that during the applicable period and as of the end of the relevant Financial Year the Borrower was in compliance with all the terms and conditions of the Financing Documents and that no Default has occurred, except as specified in such certificate and restating each of the representations and warranties set forth in Section 4.1 (Representations), as of such certification date; and |
6.3.1.3.3 | certifying compliance by the Borrower with Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants), Section 6.2.1 (No Violation of Applicable Regulations), Section 6.2.7 (No Liens) and Section 6.2.8 (Limitations on Guarantees) and setting forth in reasonable detail all information necessary to calculate (and providing the calculations necessary to determine) compliance with Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants), during the applicable period and as at the last day of the period covered, as relevant, by the Financial Statements. |
6.3.1.4 | a management letter and other communication from the Auditors commenting,inter alia, on the adequacy of the Borrower’s financial control procedures, its policies and controls against money laundering or financing of terrorism, its accounting systems and its management information system during that Financial Year. |
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6.3.2.1 | two (2) copies of the unaudited Financial Statements of the Borrower for such quarterly period setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Financial Year. |
6.3.2.2 | a certificate of an Authorized Representative of the Borrower: |
6.3.2.2.1 | certifying that the Financial Statements delivered pursuant to Section 6.3.2.1 (Unaudited Quarterly Financial Statements) were prepared from and are in accordance with the Borrower’s books and records and give a true and fair view of the financial position of the Borrower as of the date thereof and the results of its operations and cash flow for the relevant Financial Quarter, all in conformity with Accounting Principles; |
6.3.2.2.2 | certifying that during the applicable period and as of the relevant Financial Quarter Date the Borrower was in compliance with all the terms and conditions of the Financing Documents and that no Default has occurred, except as specified in such certificate, and restating each of the representations and warranties set forth in Section 4.1 (Representations), as of such certification date; and |
6.3.2.2.3 | certifying compliance by the Borrower with Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants), Section 6.2.1 (No Violation of Applicable Regulations), Section 6.2.7 (No Liens) and Section 6.2.8 (Limitations on Guarantees) and setting forth in reasonable detail all information necessary to calculate (and providing the calculations necessary to determine) compliance with Sections 6.1.11.1 through 6.1.11.7 (Financial Covenants), during the applicable period and as at the last day of the period covered, as relevant, by such Financial Statements. |
6.3.3.1 | Not later than five (5) days after receipt by the Borrower, all notices relating to the Loan, including notices from any Authority seeking a termination of the Authorizations of the Borrower, together with copies of such notices, if written; provided that should the Borrower, for any reason, cease to possess all applicable Authorizations required to be maintained pursuant to Section 6.1.10 (Approvals), including, to maintain its status as asociedad anónima, the Borrower shall so notify IDB immediately in writing. |
6.3.3.2 | Promptly upon the occurrence of a Default or an Event of Default, a notice specifying the nature of that Default or Event of Default and any steps the Borrower is taking to remedy it. |
6.3.3.3 | Promptly upon becoming aware thereof, (a) notice of any action, suit, other legal proceeding, administrative proceedings, or administrative, regulatory or criminal investigations, freezing of assets, or other claim before any Authority (i) which has had or may reasonably be expected to have a Material Adverse Effect or (ii) involving the Borrower or any of its employees with regard to money laundering or the financing of terrorism, specifying the nature of such proceedings and the steps the Borrower is taking or proposes to take with respect thereto; (b) notice of all Authority audits, examinations, evaluations, monitoring reviews and reports of the Borrower’s operations (including those prepared on a contract basis), including copies of relevant portions of such notices and records, which provide for or relate to (i) material corrective action required, (ii) material sanctions proposed, imposed or required, including, notices of defaults, notices of termination of approved status, notices of imposition of supervisory agreements or interim servicing agreements, and notices of probation, suspension, or non-renewal, or (iii) “report cards,” “grades” or other classifications of the quality of the Borrower’s operations; and (c) as and when provided by the Borrower to the applicable Authority in connection with any matter described in the foregoing subclauses (a) and (b), copies of all Financial Statements, reports, notices and other information provided by the Borrower to such Authority. |
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6.3.3.4 | Prompt notice of any proposed changes in the nature or scope of the Loan or the business operations of the Borrower (but the foregoing shall not limit or otherwise affect Section 6.2.2 (Fundamental Changes) hereof). |
6.3.3.5 | Prompt notice of any material change in accounting policies or financial reporting practices of the Borrower including any change in its Financial Year; |
6.3.3.6 | Prompt notice of any default under any Debt of the Borrower having an aggregate amount outstanding of at least two million Dollars ($2,000,000) (or the equivalent in other currencies); |
6.3.3.7 | As soon as practicable prior to the occurrence, and immediately upon the occurrence, of any of the transactions or other matters described in Section 3.6.2 (Mandatory Prepayments) that would result in a mandatory prepayment being required in accordance therewith, notice of such occurrence; |
6.3.3.8 | Prompt notice of any other change in Grupo Galicia or the Share Capital owned by such Grupo Galicia (whether direct or indirect) in the Borrower as of the Effective Date and any other transfers (whether direct or indirect) of Share Capital in the Borrower in violation of any of the provisions of this Agreement; |
6.3.3.9 | As soon as practicable prior to the occurrence, and immediately upon the occurrence, of any sale, transfer or disposition of assets described in Section 6.2.6 (Limitation on Sale of Asset) with a value, in the aggregate, in excess of ten percent (10%) of the Borrower’s total assets as reflected in Borrower’s annual, audited Financial Statements most recently delivered to IDB pursuant to Section 6.3.1 (Audited Annual Financial Statements), notice of such occurrence; |
6.3.3.10 | Prompt notice of (a) any material non-compliance by the Borrower with any Environmental and Social Requirements or environmental and social provisions of this Agreement or, to the best of the Borrower’s knowledge, any material non-compliance by the Eligible Sub-Borrowers or Eligible Sub-Loans with the Environmental and Social Requirements; and (b) any environmental claim (including administrative, regulatory or judicial action, suit, judgment or demand) or material complaint relating to environmental, social, health and safety or labor aspects relating to the Borrower , or to the best of the Borrower’s knowledge, to the Eligible Sub-Borrowers or Eligible-Sub-Loans. Such notice shall include a description of the event, detailing the extent, magnitude, impact and cause of such event, together with corrective or remedial actions taken or proposed to be taken. |
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Events of Default
7.1.1.1 | terminate the obligation of IDB to make any Disbursement of the Loan whereupon such obligation shall immediately terminate; |
7.1.1.2 | declare the Loan or such part of the Loan as is specified in the notice (with accrued interest thereon) and all other Obligations to be due and payable forthwith, whereupon the same shall become immediately due and payable without any further notice and without any presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, provided, however, that upon the occurrence of an Event of Default described in Section 7.2.5 (Insolvency Events), then,ipso facto, IDB’s obligation to make any Disbursement of the Loan shall immediately terminate and the Loan and all other Obligations shall be immediately due and payable in full, without any notice of any type or character being required; and |
7.1.1.3 | exercise any other remedies that may be available to IDB under any Financing Document or Applicable Law. |
7.2.1.1 | Failure to Make Payments under Financing Documents. The Borrower fails to pay or prepay when due (whether at stated maturity, as a result of a prepayment required by Section 3.6.1 (Voluntary Prepayments) or 3.6.2 (Mandatory Prepayments) or otherwise) any Obligation, including principal or interest on the Loan and such failure has continued for a period of three (3) days from the date such payment or prepayment was due; or |
7.2.1.2 | Failure to Pay Debt. The Borrower fails to pay any amount outstanding with respect to any of its Debt (other than the Obligations) or to perform any of its obligations when due under any agreement pursuant to which there is outstanding any Debt, and any such failure continues for more than any applicable period of grace or any such Debt becomes prematurely due and payable or is placed on demand. |
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7.2.2.1 | Breach of Financing Documents. (a) the Borrower fails to perform or observe any term, covenant or agreement contained in Section 3.4 (Notes), Section 6.1.1 (Use of Proceeds), Section 6.1.8 (Senior Secured Obligations), Section 6.1.10 (Approvals), Section 6.1.14 (Maintenance of Security), Section 6.1.11 (Financial Covenants), Section 6.2 (Negative Covenants), and Sections 6.3.3.1 through Section 6.3.3.10 (Notices); or (b) the Borrower fails to perform or observe any other of its obligations contained in this Agreement or any other Financing Document (other than an obligation referred to elsewhere in this Section 7.2 (Events of Default)) and, if in the reasonable determination of IDB capable of remedy, such failure has continued for a period of ten (10) days, or, if such failure relates to Section 6.1.12 (Environmental and Social), ninety (90) days (except in respect of Section 6.1.12.1.4 in connection to which the cure period set forth therein shall apply), after IDB’s notice to the Borrower of such failure to comply; provided that no cure period shall apply if in the reasonable determination of IDB, such failure has had or could reasonably be expected to have a Material Adverse Effect. |
7.2.2.2 | Revocation; Termination or Repudiation of Financing Documents. Any Financing Document or any of its terms: |
7.2.2.2.1 | is revoked, terminated, becomes void or ceases to be in full force and effect; |
7.2.2.2.2 | becomes, or the performance of or compliance with any obligation thereunder becomes, unlawful; or |
7.2.2.2.3 | is repudiated by any party thereto or its legality, validity or enforceability is challenged by any Person. |
7.2.4.1 | Seizure of Property. condemns, nationalizes, seizes, confiscates or otherwise expropriates all or any substantial part of the Property of the Borrower or of its Share Capital or commences any proceeding in furtherance of any of the foregoing; |
7.2.4.2 | Control of Property. assumes custody or control of such Property of the business or operations of the Borrower or of its Share Capital or any Consolidated Subsidiary or the Share Capital of any Consolidated Subsidiary; or |
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7.2.4.3 | Interruption of Business. takes any action to displace the management of the Borrower, to curtail the Borrower’s authority to conduct its business, to dissolve or disestablish the Borrower, or to prevent the Borrower or its officers from carrying on all or a substantial part of its business or operations, or any of the foregoing shall occur with respect to any Consolidated Subsidiary. |
7.2.5.1 | Involuntary Proceedings. An involuntary proceeding is commenced or an involuntary petition is filed seeking: |
7.2.5.1.1 | an adjudication of the Borrower as bankrupt or insolvent; |
7.2.5.1.2 | dissolution, liquidation, winding up, reorganization, moratorium, arrangement, adjustment or composition of, or other relief in respect of the Borrower or its debts, or of a substantial part of its Property under Applicable Law; or |
7.2.5.1.3 | (x) the initiation by the Argentine Central Bank of a proceeding under Article 34 of the Banking Law requesting the Borrower or any Subsidiary to submit a plan under such article or (y) a temporary, total or partial suspension of the activities of the Borrower pursuant to Article 49 of the charter of the Argentine Central Bank; or |
7.2.5.1.4 | the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any substantial part of its Property. |
7.2.5.2 | Voluntary Proceedings. The Borrower: |
7.2.5.2.1 | voluntarily commences any proceeding or files any petition seeking liquidation, reorganization or other relief under Applicable Law (including without limitation, under Law Number 24,522); |
7.2.5.2.2 | applies for or consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any substantial part of its Property; | ||
7.2.5.2.3 | makes a general assignment for the benefit of creditors; |
7.2.5.2.4 | requests a moratorium or suspension of payment or reorganization of debts from any competent Authority (including, without limitation, by means of an out-of-court creditors arrangement —APE / Acuerdo Preventivo Extrajudicial); |
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7.2.5.2.5 | institutes proceedings or takes any form of corporate action to be liquidated or adjudicated bankrupt or insolvent; |
7.2.5.2.6 | consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.2.5.1 (Involuntary Proceedings); or |
7.2.5.2.7 | takes any action for the purpose of effecting any of the foregoing. |
7.2.5.3 | Special Regimes. The Borrower or any of its Subsidiaries is submitted to, or becomes the subject of, any temporary administration, surveillance, intervention or liquidation regime by any Authority. |
7.2.5.4 | Inability to Pay Debts. The Borrower becomes unable, admits in writing its inability or fails generally to pay its debts as they become due or otherwise becomes insolvent. |
7.2.5.5 | Events Analogous to Bankruptcy, Insolvency, Etc. Any other event occurs which under any Applicable Law would have an effect analogous to any of those events listed in Section 7.2.5.1 (Involuntary Proceedings), 7.2.5.2 (Voluntary Proceedings) or 7.2.5.4 (Inability to Pay Debts). |
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7.2.12.1 | fails to become effective after any Disbursement; |
7.2.12.2 | is revoked, terminated or ceases to be in full force and effect or ceases to provide the Security intended, without, in each case, the prior consent of IDB; | ||
7.2.12.3 | becomes unlawful or is declared void; or |
7.2.12.4 | is repudiated or its validity or enforceability is challenged by any Person and any such repudiation or challenge continues for a period of thirty (30) days during which period such repudiation or challenge has no effect. |
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Miscellaneous
Tte. Gral. Juan Domingo Perón 430
13 Floor (C1038AAJ)
Buenos Aires, Argentina
Facsimile: +54 11 6329 6484
Electronic mail: carlos.e.lopez@bancogalicia.com.ar;
internacional@bancogalicia.com.ar
1300 New York Avenue, N.W.
Washington D.C. 20577
United States of America
Attention: Portfolio Management Unit
Structured and Corporate Finance Department
Alternative address for communications by facsimile:
(202) 312-4135
Alternative address for communications by electronic mail:
primailbox@iadb.org
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8.3.1.1 | the execution, delivery, enforcement or performance of, and any transaction contemplated under, this Agreement, the Note(s) or any of the other Financing Documents; | ||
8.3.1.2 | the Loan or the use or intended use of the proceeds therefrom; and/or |
8.3.1.3 | any actual or prospective claim, action, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnified Person is a party thereto (all of the foregoing, collectively, theIndemnified Liabilities); |
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8.6.1.1 | any Participant(s) or any other Person with a Participation in, or who intends to purchase a Participation in, the Loan and the Paying Agent; |
8.6.1.2 | any Person for the purpose of exercising any power, remedy, right, authority or discretion relevant to this Agreement or any other Financing Document including in connection with IDB’s defense of any legal action, suit or proceeding brought by any other party to a Financing Document; | ||
8.6.1.3 | any Person pursuant to any Applicable Law; |
8.6.1.4 | any banking or other regulatory or examining authorities (whether governmental or otherwise) pursuant to and in accordance with whose instructions it and other banks must customarily comply; |
8.6.1.5 | the directors, officers, employees, arrangers, co-lenders, attorneys, consultants, rating agencies, independent auditors and advisors (including any technical, financial and other advisors) of each of IDB, the Inter-American Investment Corporation, the Multilateral Investment Fund, and their respective affiliates; and |
8.6.1.6 | any Person in connection with any proposed sale, transfer, assignment or other disposition of IDB’s rights under this Agreement or any other Financing Document. |
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8.10.8.1 | any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding brought in any court referred to in this Section; and |
8.10.8.2 | any claim that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. |
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BANCO DE GALICIA Y BUENOS AIRES S.A. | ||||
By: | ||||
Title: | ||||
INTER-AMERICAN DEVELOPMENT BANK | ||||
By: | ||||
Name: | ||||
Title: |
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